Line to take

Where information is environmental information, as defined by Regulation 2(1) of the EIR, then the Commissioner’s view is that the public interest will lie in maintaining the exemption at section 39(1)(a) or (b) of FOIA and considering requests only under the EIR.

Section 39(3) FOIA “section 39(1)(a) does not limit the generality of section 21” cannot have an effect on a decision made under the regulations, a standalone piece of legislation, transposed from a European Directive.

Further Information

In Rhondda Cynon Taft Borough Council v the ICO the public authority considered a request for a copy of the Land Drainage Act 1991 and refused it under s21 FOIA, on the grounds that it was reasonably accessible to the applicant by other means i.e. from www.opsi.gov.uk. The ICO found that the information was environmental information and that the EIR therefore applied. The ICO decision was that as there is no equivalent of s21 in the Regulations the pa should provide the information. The Tribunal found that the Council was entitled to rely on s21. It stated at paragraph 32 that “FOIA is providing a potential supplementary right of access to environmental information

The Commissioner agrees with outcome of the Tribunal’s decision but not the route by which the Tribunal got there. It is accepted the ICO decision notice is not correct, in particular the Commissioner was not aware of the additional wording of “in the form of copies” in article 3(4) of the Directive (*) when the decision was made.

The Information Tribunal finding that FOIA provides a supplementary right of access to Environmental Information may be right in theory but in practice taking this approach will have little practical effect.

The Commissioner does not agree with the Tribunal’s view that there is an important distinction between EIR providing a duty to “make information available” and FOIA providing a duty to “communicate” information. This draws a false distinction that isn’t supported by a detailed reading of the legislation. Section 11 FOIA provides details of what means of communication can be used by a public authority (if reasonable in the circumstances) and an applicant can express a preference. The options described in section 11 include inspection. The Commissioner believes the Tribunal overlooked this issue and the distinction drawn between EIR and FOIA in respect of the two duties is not relevant.

In the case of Rhondda Cynon Taff the information may well have been exempt under section 21 of FOIA if the request was considered under the regime. But the Commissioner believes that the public interest would be in maintaining the exemption in section 39(1)(a) or (b) and therefore consideration of the request under the EIR was the only route.

Section 39(3) FOIA – section 39(1)(a) does not limit the generality of section 21 cannot have an effect on a decision made under the regulations, a standalone piece of legislation, transposed from a European Directive.

A way forward in scenarios relating to EIR and “reasonably accessible” information held by PAs

1. A request for information is made — the information falls within definition of EI in regulation 2

a. Section 39(1)(a) or (b) FOIA will apply, and we would therefore expect the pa to deal with the request under the EIR.

b. Is the information held?

i. Yes — proceed to part 2

ii. No — the exception under regulation 12(4)(a) applies. We would expect the pa to issue a refusal under regulation 14. Failure to do this will be a breach of regulation 14.

2. Is the information held publicly available and easily accessible to the applicant?

a. Yes

i. If the applicant has not requested the information to be made available in a specific format, but the pa has explained to the applicant specifically how they have made requested information publicly available (e.g. in a library, on a website) then we would consider that the pa has made the information available in compliance with Regulation 5.

ii. If the applicant has asked for a copy of the information and the pa has refused to provide a copy because the information is already publicly available in another format. Then we would consider that Regulation 6(1)(b) applies and that (reading it via article 3(4) of the Directive — “including in the form of copies) the pa has no duty to make the information available under regulation 5.

iii. If the applicant does not initially request a copy, but when the pa explains how the information is already publicly available the applicant then responds that this unacceptable and that they now want to be sent a copy of the information. Then we would consider that they are now in any case asking for a copy. Again Regulation 6(1)(b) applies and (reading it via article 3(4) of the Directive — “including in the form of copies the pa has no duty to make the information available under regulation 5.

b. No

i. The public authority must provide the information or refuse under another provision in the regulations

(*) Article 3(4) of Directive 2003/4/EC provides that:

“Where an applicant requests a public authority to make environmental information available in a specific format (including in the form of copies), the public authority shall make it so available unless:

it is already publicly available in another form or format, in particular under Article 7, which is easily accessible by applicants; or

It is reasonable for the public authority to make it available in another form or format, in which case reasons shall be given for making it available in that form or format